Fiduciary Shield Doctrine Defeats Specific Jurisdiction

The Court of Appeals affirmed the trial court’s ruling that appellees lacked sufficient contacts with Texas in their individual capacities to support the exercise of personal jurisdiction over them. Appellants argued that appellees were subject to specific jurisdiction in Texas because the tortious interference and related conspiracy claims against appellees directly relate to and arise from appellees’ purposeful contacts with Texas. According to the Court, any alleged jurisdictional contacts in furtherance of tortious interference made by appellees in their capacity as corporate officers are subject to the fiduciary shield doctrine and do not constitute contacts with Texas in their individual capacities because there was no proof such contacts were motivated solely by appelees’ personal interest.  Accordingly, the Court found appellees’ evidence that none of their contacts with Texas were in their individual capacities, combined with the fact that appellees could not be liable in their individual capacities for their conduct on behalf of out of state entities, negated appellant’s jurisdictional allegations.

Kaye-Bassman Int’l v. Dankuka

Less Discovery Does Not Materially Advance the Ultimate Termination of Litigation

The Court of Appeals has once again denied a permissive interlocutory appeal. Respondents sued petitioners for injuries they sustained after a bus accident in Mexico. The bus ticket stated that the passenger accepted “the validity and application of the authority and jurisdiction of the applicable Mexican Law and Regulations…” The trial court denied petitioner’s motion to apply the laws of Mexico, ruling instead that Texas law applied. Petitioners appealed. The Court found that although petitioners claim they will have to do additional discovery without a decision from the Court of Appeals on the choice of law issue, petitioners failed to show the appeal would materially advance the ultimate termination of the litigation.

Autobuses Ejecutivos v. Cuevos

Pro Se Plaintiff Loses Foreclosure Challenge

After Brown missed at least twenty-five mortgage payments, the Bank sent Brown notice of default and he failed to cure. The Bank sought a declaratory judgment authorizing a non-judicial foreclosure sale of the property, and obtained summary judgment. Brown appealed, and the Court affirmed. First, the Court found that Brown’s attacks on the admissibility or competency of the Bank’s summary judgment evidence were largely inadequately briefed. Second, the Court rejected Brown’s argument that the trial judge erred by denying Brown a continuance of the summary judgment hearing because (1) Brown’s motion for continuance did not mention the summary-judgment hearing, (2) Brown failed to preserve error because there was no ruling on his motion, and (3) Brown failed to submit evidence demonstrating the materiality of the purportedly previously unavailable summary-judgment evidence. Finally, the Court held that Brown failed to show reversible error due to the clerk’s late filing of the record on appeal.

Brown v. Bank of America

No Governmental Immunity For Charter Schools Under Texas Whistleblower Protection Act

Kimberly Ball-Lowder brought suit against Pegasus for wrongful discharge under the Texas Whistleblower Protection Act.  Pegasus filed a plea to the jurisdiction, asserting that Ball-Lowder’s claims must be dismissed because the Whistleblower Protection Act is not applicable to a Texas open-enrollment charter school.  The Court held that the Act applies to an open-enrollment charter school, and affirmed the trial court’s order denying the plea to the jurisdiction.  Government immunity is waived for a “local government entity” respecting claims under the Act.  The Court concluded that the Whistleblower Protection Act’s definition of “local government entity” must be interpreted to include an open-enrollment charter school to be consistent with the Texas Supreme Court’s decision in LTTS Charter School, Inc. v. C2 Construction III, 342 S.W.3d 73 (Tex. 2011).

Pegasus School v. Kimberly Ball-Lowder

Inability To Obtain Medical Treatment Is Not An Irreparable Injury

The court of appeals conditionally granted mandamus relief after the trial court issued a TRO preventing relators from terminating Greg Marquez’s  employment. The TRO stated that Marquez’s injury was irreparably because the loss of his job would result in the loss of health insurance benefits for him and his family, and that he would be unable to obtain medical treatment.  The Court of Appeals held that Marquez’s injury was not irreparable because the cost of medical treatment is compensable through monetary damages.  Consequently, the trial court abused its discretion by granting the TRO.

In re Southern Foods Group, LLC

The Court subsequently withdrew its opinion and vacated its order in In re Southern Foods GroupsThe Court found that because the trial court had orally denied the real party in interest’s request for a temporary injunction, the issues relating to the TRO were moot.

No Carrying Costs In Breach of Real Estate Contract Dispute

Among other claims, the Olmsteads sued the Goldmans for breach of contract to purchase residential real estate.   The trial court rendered judgment in favor of the Olmsteads and awarded them damages and attorney fees; the Goldmans appealed.  The Court of Appeals partially reversed, holding that the Olmsteads take nothing on their claims and remanded the issue of attorneys’ fees.  The Court found that the trial court erred by awarding the Olmsteads damages based on the carrying costs of the house after the Goldmans breached the contract until the house was sold.  The proper measure of damages was the difference between the contract price and the market value of the house on the date the Goldmans breached the contract, which was zero.  The court reasoned that non-breaching sellers should not be awarded the post breach costs of ownership because it could “incent the seller to hold the property indefinitely while waiting for market conditions to change, or for a purchaser willing to pay a specific price.”

Goldman v. Olmstead

A Case of Mistaken Paternity

In 1977, Bullough married Hundley because she told him she was pregnant with his child – Dale Jr. – who was born the following year.  In 2004, the parties divorced after a two-day trial, and the trial court made a division of the parties’ marital estate.  More than six years later, Bullough learned that Dale Jr. was not his biological son through DNA testing.  A few months later, the Will Slip 2011 Trust was created for the benefit of Bullough and the children of Dale Jr.  Bullough then assigned his claims against Hundley to the Trust, and seventeen days later, the Trust filed suit.

The essence of the Trust’s claims was that Hundley deceived Bullough into marrying her by lying about the paternity of Dale Jr., and continued to lie throughout the marriage.  As damages, the Trust sought the value of the support Bullough provided Hundley during more than 20 years of marriage, the value of the assets Hundley received as part of the divorce, and the parties’ art collection.  The trial court found that the 2004 final divorce decree barred the Trust’s claims and granted Hundley’s motion to dismiss and motion for summary judgment.  The Court of Appeals affirmed, holding that because the Trust’s claims arise out of facts that could have been litigated in the divorce, they were barred by res judicata.

Hevey v. Hundley

Court Enforces Forum Selection Clause

The parties entered an operating agreement, which contained a forum selection clause that required them to submit to jurisdiction in Oregon. CKH initiated litigation related to the operating agreement in Texas. The trial court granted appellees motion to dismiss on venue finding that CHK agreed to venue in Oregon, and CKH appealed.

The Court of Appeals affirmed for three reasons. First, the Court found that appellees did not waive the court’s jurisdiction to rule on its motion to dismiss based on a forum selection clause simply because the trial court denied their special appearance. Second, the Court held that whether CKH’s claims are subject to arbitration is irrelevant to the forum selection clause. The operating agreement requires parties to submit to jurisdiction in Oregon “provided such claim is not required to be arbitrated.” CKH initiated a lawsuit rather than filing arbitration; the Court found such “action” to be controlled by the forum selection clause. Further, the parties agreed to arbitration in Oregon, which makes it clear that the parties envisioned all claims–whether brought before a court or an arbitration panel–be filed in Oregon. Third, the Court held that a non-signatory was entitled to rely on and enforce the forum selection clause because the claims against the non-signatory are substantially interdependent on the claims against the signatory.

CKH Family LP v. MGD-CCP Acquisition

Corporate Veil Intact

In 2008, Metroplex entered a mail processing agreement with Donnelley’s predecessor in interest Browne & Co under which Metroplex would sort mail for Browne’s Dallas facility customers.  In 2009, Metroplex ceased its operations, and Browne filed suit against Metroplex seeking the return of money it had on deposit.  The jury found in favor of Browne, and Metroplex appealed.  The Court of Appeals affirmed the jury’s finding of breach of contract against Metroplex and its award of attorney’s fees.  The Court, however, found no evidence to support piercing Metroplex’s corporate veil to hold its president personally liable.  Accordingly, the Court reversed the trial court’s judgment to the extent it orders recovery against the president individually, and affirmed the trial court’s judgment in all other respects.

Metroplex Mailing Servs. v. R.R. Donnelley Sons

Botched Job Posting Not Grounds For Retaliation Suit

In 2004, Crutcher filed a lawsuit against the Dallas Independent School District (“DISD”) alleging discrimination and retaliation.  The 2004 lawsuit was settled out of court.  In the summer of 2009, Crutcher interviewed for a position with the DISD, but did not get the job.  Following this adverse employment decision, Crutcher sued DISD.  The trial court granted summary judgment in favor of DISD, and Crutcher appealed.  The Court of Appeals held that Crutcher failed to establish a causal connection between Crutcher’s filing of the 2004 lawsuit and the adverse employment decision so as to establish a prima facie case of retaliation.  The Court further held that DISD provided substantial evidence to show legitimate, nondiscriminatory reasons for its decision to not hire Crutcher.

Crutcher v. Dallas Indep.Sch. Dist., No. 05-11-01112-CV